Music associations back request to rehear piracy case

Two music associations have backed music licensing body BMG Rights Management’s request for an appeals court to rehear a piracy dispute against internet service provider (ISP) Cox Communications. 

Earlier this month, TBO reported that the US Court of Appeals for the Fourth Circuit had tossed a $25 million piracy verdict and ordered a new trial in the high-profile dispute. 

Because the district court had incorrectly instructed the jury on contributory infringement, the Fourth Circuit ordered a new trial.

“Specifically, Cox Communications challenges the district court’s instructions that the jury could impose liability for contributory infringement if the jury found ‘Cox knew or should have known of such infringing activity’,” said the Fourth Circuit in its decision, adding that “should have known” reflects negligence and is too low a standard.

But it was not complete victory for Cox Communications as the court also found that the ISP had forfeited its right to a safe harbour provision under the Digital Millennium Copyright Act.

Two weeks after this, BMG petitioned the Fourth Circuit for rehearing by the panel or rehearing by the court en banc.

BMG argued that in ordering a new trial, the court “mistakenly applied” legal principles relevant to an ‘inducement’ theory of liability, rather than for a claim of “material contribution” (which BMG had pursued).

“The panel’s unprecedented application of a heightened knowledge standard creates a conflict with decisions and pattern jury instructions from other circuits as well as with the common-law rules underlying contributory infringement,” said BMG.

On Thursday, February 22, two music associations applied for leave to file a brief in support of BMG’s request. 

The Recording Industry Association of America and National Music Publishers’ Association claimed that the Fourth Circuit’s holding that liability based on a theory of material contribution cannot rest on constructive knowledge “erroneously undermines a critical protection that creators depend on”.

If the Fourth Circuit’s decision isn’t corrected, the outcomes would “threaten the very incentives” of artists to create works and distribute them to the public, claimed the associations.

The Fourth Circuit accepted the briefs yesterday, February 26.